Army Officer Denied Retrial Despite Expert's New Testimony

newsmax.com ^ | March 21, 2009 | Nat Helms Article

[HighlyOpinionated]

The entire story has not been revealed.

This situation does not pass the smell test.

Remember, it is such as this soldier who may be fighting for freedom, liberty, and the USofA in the coming season of 0-vs-WeThePeople.

[Dubya]

Don’t hurt the Muslims or we will put you in jail

[Anti-Bubba182]

Agreed!

[mountainlion]

My bias is to assume the man innocent. I have seen much in the media that was completely false and of course there is the LIAR john kerry to take into consideration. murtha lied about cold blooded murder like kerry.

[Talisker]

Apparently the forensics expert is saying that the prosecution’s description of the incident (which you posted) is backwards. That instead of being shot “in the head and chest,” the shooting was done in first in the chest, and then in the head. And that this order of shooting can only be explained by self-defense.

[Polybius]

We are either at war and Al Qaeda is the enemy or we are playing tiddlywinks being supervised by the ACLU.

By the same token, you can't have anarchy in the ranks. You don't win wars with anarchy.

"Colonel, we captured Muhamed al Shiitehead."

"Fantaaaastic!!! We can get a goldmine of information out of him!"

"Well, ummm ... No, sir, we can't.

"Why not. They always end up talking.

"Well, ummm .... Not after Lt. Jenkins took it upon himself to put a .45 slug into his brain."

[Uri’el-2012]

You sound like some panty-waisted liberal from DU.

The Marquis of Queensbury rules are only for two civilized Brits.

The Geneva Rules are only for uniformed enemy military.

I'll bet you want to arrest terrorists.

[Girlene]

I asked the question why because a Military Judge does not arbritraily reduce a conviction by 7 years. Here's more information from another CAAFlog blog prior to and on the day of Behenna's mistrial motion decision, Does Anyone Have a Behenna Update.

There is lots of interesting speculation about the legalities of Brady material, mistrial, double jeopardy type of implcations on the various CAAFlog blogs on Behenna.

Supposedly the forensic specialist made an initial report for the prosecution that wasn't conclusive, but leaned in the direction of the prosecutors. After hearing the defense forensic experts, the prosecutor's expert reviewed the material and came to the conclusion the defense explanation was the only one that made sense. He allegedly even conducted an experiment to demonstrate the theory. Then the prosecution sent him home.

After the defense was aware that they might have an issue of favorable evidence (or Brady material) not being turned over, they allegedly asked the prosecutors if any existed. Prosecutors said no.

There's a reason the Lt. was not confined after being sentenced. He was only taken into custody since this mistrial motion was decided. According to one blogger at CAAFlog, the judge DID find the evidence was favorable and should have been disclosed. But, he didn't think it would have affected the outcome. The blogger wonders if is is reversable error by the judge since the Brady material (favorable evidence) not only pertains to findings of innocence or guilt, but also to punishment determination.

[kellynla]

apology accepted :-)

[Polybius]

Apparently the forensics expert is saying that the prosecution’s description of the incident (which you posted) is backwards. That instead of being shot “in the head and chest,” the shooting was done in first in the chest, and then in the head. And that this order of shooting can only be explained by self-defense.

Well, not really. The term for shooting a man in the head after you shoot him in the chest has been traditionally called a "coup de grace".

Shoot him. Drop him. Finish him.

That goes for hunting too. I have an elk skull I once found with small bullet hole right between the eyes. I can guarantee you that was not the first shot or a shot fired in self defense.

The self defense explanation is possible but not plausible. It just doesn't pass the smell test with a naked man.

A more plausible explanation is that the "naked man" evidence was faked, as Hawk1976 pointed out. However was this claim used as a defense?

[Polybius]

You sound like some panty-waisted liberal from DU. The Marquis of Queensbury rules are only for two civilized Brits. The Geneva Rules are only for uniformed enemy military.

No, I'm a retired U. S. Naval officer that knows his way around the U.C.M.J. "Lawful orders" and all that.

The Rule of Law is there for a reason. If somebody needs to be executed, that is for a military tribunal to decide and not for some 0-2 to decide on his own whim.

"Psst. Lt. Wilson, did you know that XeniaSt is an al Qaeda operative?"

"Really, Akhbar?!?"

"Yes, Lt. Wilson. I would not lie about such a thing."

"You know what I'm going to do? I'm going to take XeniaSt out and shoot him!"

[Girlene]

That has described murder, not combat.

History says that the ancient Celts fought naked in combat. This man was not an ancient Celt.

I would assume if the Iraqi was indeed naked, it was an intimidation tactic for an improvised interrogation by the Lt. The prosecutors' own forensic expert tried to tell the prosecutors that he found the defense experts explanation the only one that made sense. He even did a demonstration test to prove his theory. He was dismissed without giving testimony that would have been favorable to the defense.

The military must maintain order to remain effective. Not abiding murder is one aspect of good order. Following the rule of law in the courtroom is another aspect. Behenna was not convicted of premeditated murder. He was also not given the benefit of evidence that backed up his self-defense claim.......

........regardless of whether the Iraqi was naked or not. A naked man can still be a threat.

[jazusamo]

It’s a shame this didn’t come out in the court-martial but it will surely come out in the appeals process, beyond a reasonable doubt is still supposed to be the threshold.

Thanks for the pings.

[Girlene]

Re. the judge denying a mistrial motion. It seems he did not think the favorable evidence by the defense forensic expert would have changed the outcome of the case. But it seems the jury panel WAS quite interested in the forensics before a conviction. From a blogger that was in the courtroom: Update on Lt. Behenna Trial

The defense presented two expert witnesses today. The first expert witness was a pathologist out of Texas. Essentially, he tried to establish that Ali Mansur was standing at the time he was hit with the first shot. The second expert witness was a crime scene re-constructionist. He also attempted to establish that Ali Mansur was standing at the time he was hit with the first shot. This was important because it would show that the physical evidence contradicts the testimony of SSG Warner and Harry.

CPT Erwin Roberts crossed examined both expert witnesses effectively. He was able to call into question their expert opinions by demonstrating that they may not have had enough crime scene date to make a correct opinion that was in direct contravention to the witnesses that testified.

The panel seemed to pick up on CPT Robert’s cross, because their written questions to the expert witnesses were very much concerned which crime scene data was used for the expert opinions.

So it seems the jury panel was VERY interested in the experts' forensic opinions. The prosecutor was later given information from his own forensic witness that he agreed with the defense. But the prosecutors declined to acknowledge that evidence even when asked. For the military judge to say the favorable evidence wouldn't have changed the outcome of a conviction or the sentence seems disingenuous at best. The jury panel were "very much concerned which crime scene data was used".

[RedRover]

Thanks for ping, Justa! And for the extra details, Girl!

[jazusamo]

For the military judge to say the favorable evidence wouldn't have changed the outcome of a conviction or the sentence seems disingenuous at best.

Dead on the money, Girl. The panel is supposed to decide guilt or innocence, not the judge. In effect this judge decided the Lt's guilt by denying this new evidence to another panel.

Whether it happened as the Lt. claims, I don't know but a military panel should be the arbiter. Hopefully he'll get a new trial due to appeal.

[Uri’el-2012]

XS>You sound like some panty-waisted liberal from DU.

The Marquis of Queensbury rules are only for two civilized Brits.

The Geneva Rules are only for uniformed enemy military.

No, I'm a retired U. S. Naval officer that knows his way around the U.C.M.J.

"Lawful orders" and all that.

The Rule of Law is there for a reason. If somebody needs to be executed, that is for a military tribunal to decide and not for some 0-2 to decide on his own whim.

"Psst. Lt. Wilson, did you know that XeniaSt is an al Qaeda operative?"

"Really, Akhbar?!?"

"Yes, Lt. Wilson. I would not lie about such a thing."

"You know what I'm going to do? I'm going to take XeniaSt out and shoot him!"

God Help this Republic,

if you reflect the current crop defending the Constitution.

You would kill an American citizen but defend a terrorist !

You need professional care.

[bigheadfred]

" In Strickler v. Greene (1999) 527 U.S. 203, 280-281, the United States Supreme Court stated:

In Brady this Court held "that the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution." Brady v. Maryland, supra, 373 U.S. at 87. We have since held that the duty to disclose such evidence is applicable even though there has been no request by the accused, [United States v. Agurs (1976) 427 U.S. 97, 107], and that the duty encompasses impeachment evidence as well as exculpatory evidence, [United States v. Bagley, (1985) 473 U.S. 667, 676]. Such evidence is material "if there is a reasonable probability that had the evidence been disclosed to the defense, the result of the proceeding would have been different." Id at 682; see also [Kyles v. Whitley (1995) 514 U.S. 419, 433-434]."

IMO, the judge saves his butt by ruling that the information would not have effected the outcome of the trial. But he really knows that that decision is not completely defensible. So, instead of ruling a mistrial, he lowers the sentence. He gets to wash his hands of the affair. Let an Appeals court rule.

The prosecution lies. The judge doesn't have the cajones to call them on it.

You seem like a reasonable person. Let's run this scenario. You are the member of a jury/panel. The forensic expert on the witness chair is asked what the evidence shows, and if it is consistent with the statements made by the defendant. He says yes, I even conducted an experiment to prove out what the evidence showed. It is the ONLY thing that makes sense. The govt. has a dead body, but the defendant's statement and the testimony of the expert Govt. witness are compatible. Being a reasonable person, would you be able to draw a reasonable conclusion? Not according to the judge. Not according to the prosecution.

I stand by my earlier post.

It is Chicken****.

[Girlene]

Good background on the "Brady material", bhfred.

You seem like a reasonable person. Let's run this scenario. You are the member of a jury/panel. The forensic expert on the witness chair is asked what the evidence shows, and if it is consistent with the statements made by the defendant. He says yes, I even conducted an experiment to prove out what the evidence showed. It is the ONLY thing that makes sense. The govt. has a dead body, but the defendant's statement and the testimony of the expert Govt. witness are compatible. Being a reasonable person, would you be able to draw a reasonable conclusion? Not according to the judge. Not according to the prosecution.

Well said. The forensic evidence was important to the jury panel. Withholding the Brady material (favorable evidence) was important enough to the judge to lower the sentence. If anyone can make sense out of this mess, it will be Zimmerman.

[Polybius]

The Rule of Law is there for a reason. If somebody needs to be executed, that is for a military tribunal to decide and not for some 0-2 to decide on his own whim.

"Psst. Lt. Wilson, did you know that XeniaSt is an al Qaeda operative?"

"Really, Akhbar?!?"

"Yes, Lt. Wilson. I would not lie about such a thing."

"You know what I'm going to do? I'm going to take XeniaSt out and shoot him!"

***********

God Help this Republic, if you reflect the current crop defending the Constitution. You would kill an American citizen but defend a terrorist ! You need professional care.

Actually, XeniaSt, you just got whacked by your own petard.

I did not kill anybody. I am CDR Polybius, not LT Wilson.

LT Wilson whacked you because he is not the sharpest pencil in the box and he had heard it spread around that, if you believe somebody is al Qaeda, you can just take him out on your own whim and shoot the S.O.B.

LT Wilson believed you were al Qaeda.

So, on his own accord, LT Wilson took you out and whacked you.

You said that was O.K. What's your beef now?

Now I, CDR Polybius, will have to charge LT Wilson for your murder.

You are the one defending extra-judicial murders on this thread. Not I.